CMS Gas Transmission Company v. Argentine Republic

Abstract

151Arbitration — Award — Economic crises in Argentina — Expropriation claim — Article IV(1) of Argentina — US Bilateral Investment Treaty, 1991 (“BIT”) — Whether Respondent failing to accord Claimant fair and equitable treatment — Article II(2)(a) of the Argentina — US BIT — Whether Respondent discriminating against Claimant — Umbrella clause — Defence of necessity — Remedies — Respondent requesting continued stay of enforcement of Award — Respondent applying for annulment of AwardExpropriation — Article IV(1) of the Argentina–US BIT — Interpretation — Indirect and creeping expropriationFair and equitable treatment — Article II(2)(a) of the Argentina–US BIT — Customary international law — InterpretationDiscrimination — Arbitrariness — Article II(2)(b) of the Argentina–US BIT — Interpretation — Applicable standardsTreaties — Bilateral Investment Treaty — Article II(2)(c) of the Argentina–US BIT — Umbrella clause — Treaty claims — Standards of protectionState responsibility — Defence of necessity — Customary international law — International Law Commission’s Articles on State Responsibility, Article 25 — Essential interest of State — Grave and imminent peril — Alternatives available — Respondent’s contribution to crisisTreaties — Defence of necessity — Article XI of Argentina–US BIT — Emergency clause — Essential security interest — Whether self-judgingRemedies — International law — Restitution — Compensation — Most applicable remedy — Applicable standard — Valuation method — Interest — CostsAward — Stay of enforcement — ICSID Convention, Article 52(5) — ICSID Arbitration Rule 54 — Interpretation — Adequate assurances — Respondent applying for annulment of AwardAnnulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — ICSID Convention, Article 25 — Argentina–US BIT, Article I(1) — Jurisdiction — Shareholder claiming for its rights in a foreign company independent from the latter’s rights — Definition of investmentAnnulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Argentina–US BIT, Article II(2)(a) — Standard of fair and equitable treatment — Stable legal and business environment152Annulment — Grounds for annulment of Award — Failure to state reasons — Argentina–US BIT, Article II(2)(c) — Umbrella clause — Shareholder’s claim for its rights in a foreign company independent from the latter’s rights — InterpretationAnnulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Relationship between Article 25 of International Law Commission’s Articles on State Responsibility and Article XI of Argentina–US BIT — NecessityAnnulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Relationship between Article 27 of International Law Commission’s Articles on State Responsibility and Article XI of Argentina–US BIT — Compensation — InterpretationCompensation — Standard of compensation — Fair market value — Discounted market value — No expropriation — Failure to state reasons